BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G WILLIAM ARMSTRONG, EMPLOYEE OPINION FILED SEPTEMBER 29, 2017

Transcription

1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G WILLIAM ARMSTRONG, EMPLOYEE (A E C) ARK. ELECTRIC COOP., INC., SELF-INSURED EMPLOYER CENTRAL ADJUSTMENT COMPANY, INC., INSURANCE CARRIER/TPA C LAIMANT R E S P O N DENT RESPONDENT OPINION FILED SEPTEMBER 29, 2017 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE BETTY J. HARDY, Attorney at Law, Little Rock, Arkansas. Decision of Administrative Law Judge: Reversed. OPINION AND ORDER The respondents appeal an administrative law judge s opinion filed April 12, The administrative law judge found that the claimant sustained an injury to his cervical spine. After reviewing the entire record de novo, the Full Commission reverses the administrative law judge s opinion. The Full Commission finds that the claimant did not prove he sustained a compensable injury to his neck or cervical spine.

2 ARMSTRONG - G I. HISTORY William E. Armstrong, Jr., now age 44, testified that he was employed with the respondents as a Right-of- Way Foreman. The parties stipulated that the employment relationship existed at all times pertinent, to include October 1, 2015[.] The claimant testified on direct examination: Q. And do you recall the incident that occurred on October 1, 2015? A. A little bit. Q. Okay. Can you tell me what happened? A. I was driving to work, and I was working in the Combs area near Fayetteville, and I had a motor vehicle accident...best I remember is I ran off the road and hit a sign. Q. Okay. Did your vehicle roll over? A. No, ma am. Q. Okay. Did it turn on its side? A. It just spun around in circles. Q. Okay. Did your airbag deploy? A. Yes, ma am. Q. Okay. Did it hit you in the face? A. Yes... Q. What types of injuries did you sustain in that vehicle?

3 ARMSTRONG - G A. Neck pain, back, shoulder, and lower - my lower back area. The claimant testified that the respondents provided medical treatment. According to the record, the claimant treated at Mercy Clinic Family Medicine on October 1, 2015: States he was driving to work. States he does not know what happened. States the truck spun 6 times went off the road hit an embankment then landed in the middle of the road. Does not remember being on the left side. States he remembers going up the embankment and spinning. Denies any syncope or near syncope... Does not remember hitting his head. He did have his seatbelt on. He has some pain on the right lower abdomen. He had rebound tenderness. Pain in the low back and the right shoulder...tenderness in the right shoulder, cervical, and low back... Skin - redness to the right cheek and nose from the air bag. A physician diagnosed MVA (motor vehicle accident). An x-ray of the claimant s cervical spine was taken on October 1, 2015: There is normal alignment. The vertebral body heights and disc heights are well maintained. No fractures are seen. The prevertebral soft tissues are normal in caliber. IMPRESSION: 1. Cervical series with no acute abnormality seen.

4 ARMSTRONG - G The claimant treated at CHI St. Vincent on October 2, 2015: Pt comes in today to recheck his diabetes. He states his sugars are in the range most of the time. He is not having any new problems at this time. It was noted on October 2, 2015, Patient reports: no swelling in joints, no painful joints, no muscle cramping, no muscle weakness, no back pain, no neck pain, no hip pain, no knee pain, no shoulder pain, no foot pain, no muscle pain. A physician assessed: 1. Non-insulin-dependent diabetes mellitus without complications. 2. Hyperlipidemia. 3. GERD (gastroesophageal reflux disease). The claimant testified that he returned to work for the respondents on October 5, The claimant treated at Baptist Health Family Clinic Perryville on October 6, 2015: 1. Syncope. Onset was 6 days ago. Initial symptoms include: light-headed...had MVA Thursday. He was driving and remembered being in the right lane then drifted to the left lane and hit a sign, this was 10/1/15. He was driving a company truck...he mentioned he is feeling ok. No injury sustained in the accident. Air bag did deploy. He is afraid to drive again, afraid it will happen again, thankfully no one

5 ARMSTRONG - G was hurt. He believes he had a syncope accident. A physician assessed Syncope, unspecified syncope type. An APRN at Baptist Health took the claimant off work on October 6, 2015, Please excuse until 10/14/15. However, a Nurse Practitioner at Mercy Clinic Family Medicine Ozark stated on October 6, 2015, After examination of Mr. Armstrong there are no findings that should prevent him from doing his job. He is able to return to work without limitations. He has been instructed to follow up with his PCP to have him evaluated for any underlying medical conditions. In any event, the claimant testified that he did not return to work for the respondents after October 6, Dr. Jeffrey P. Stewart saw the claimant on October 14, 2015 and reported, This is a 42 year old diabetic male, who had a car accident. Since his car accident he has had right-sided chest pain, but also some left-sided chest pain as well and some degree of mild neck pain. The patient has had an unusual complex of symptoms of dizziness. Dr. Stewart s impression was 1. Chest pain. Appears musculoskeletal. Patient had an air bag deployed and may have also hit his steering wheel. He is unsure. He felt the brunt of the blow

6 ARMSTRONG - G from the air bag in his face. I am recommending Ibuprofen 400 mg, three times a day. 2. Light-headed and dizziness. I am unsure of the etiology...i think he should not drive for at least one more week. I asked him to follow up here in the Perryville Clinic in one week to see if his symptoms are improved. The claimant treated at Baptist Health on October 21, 2015: 1. Musculoskeletal pain. Location: right shoulder. Context: motor vehicle accident...still has some shoulder pain and some tingling in his right arm. An x-ray of the claimant s cervical spine was taken on October 21, 2015, with the following findings: Evaluation demonstrates good alignment of the vertebral bodies and posterior elements in the lateral projection. There is mild and early degenerative disc narrowing at the level of C6-C7 with associated mild uncovertebral spurring. Note is made that there is apophyseal degenerative change which is most pronounced at C4-C5 on the right. IMPRESSION: Early degenerative disc and joint disease. An MRI of the claimant s cervical spine was taken on October 27, 2015, with the following findings: Images are degraded by mild patient motion. Vertebral body heights and alignment are well maintained. Marrow signal is unremarkable.

7 ARMSTRONG - G There is no atlantoaxial subluxation. The cervical cord appears unremarkable. There is no Chiari formation. C2-C3 is unremarkable. At C3-C4, there is a very small right paracentral disc protrusion with no significant central canal or foraminal stenosis. C4-C5 and C5-6 are unremarkable. At C6-C7, there is a right paracentral, posterolateral and foraminal disc extrusion, which causes severe right foraminal stenosis and impingement upon the right C7 nerve root. This contacts the ventral cord with mild cord compression. There is no left foraminal stenosis. C7-T1 and the visualized upper thoracic intervertebral discs are unremarkable. Impression - 1. Right paracentral, posterolateral and foraminal disc extrusion at C6-C7 causing severe right foraminal stenosis and right C7 nerve root compression. There is mild ventral cord compression without underlying signal change in the cord. 2. Very small right paracentral disc protrusion at C3-C4 with no significant central canal stenosis. Dr. J. Zachary Mason reported on December 10, 2015: Mr. Armstrong was seen in our office on 12/10/2015 for his complaints of neck pain and right arm pain...he has been treated conservatively... An MRI of his cervical spine shows him to have a spondylotic ridge and disc complex extending into the neural foramen on the right side and this appears to impinge on the right C7 nerve root. There is some compression of the ventral spinal cord as well...

8 ARMSTRONG - G He has not tried physical therapy with traction and this might be helpful to him... If he does not respond to this, he may want to consider surgical intervention, which would involve an anterior cervical diskectomy and fusion at C6-7 with bone grafting and cervical plating. I have gone over the operative procedure with him should he fail conservative treatment. He is to report back to us after he has completed his therapy and we will decide then whether or not he should proceed with surgery. A physical therapist evaluated the claimant on December 11, 2015: Patient reports to therapy today with complaint of neck pain and dizziness. He reports that the pain has been occurring for more than a year but was worsened after being involved in a MVA at work in October. In addition to the neck pain and dizziness he reports that he is having numbness and tingling in his right arm and fingers. Patient reports that he received treatment for this issue under work comp for a while but was then discharged and began therapy on his own. The record indicates that the claimant was provided 18 visits of physical therapy. A physical therapist completed a Discharge Report on January 25, 2016: Patient reports that his neck is feeling great today. He states that his dizziness continues to come and go

9 ARMSTRONG - G but it is better since beginning therapy. He also reports that he drove 6 miles over the weekend and didn t have to stop secondary to dizziness. Patient states that he has been taking herbal medicines that he reports have helped with his symptoms as well...patient has met maximum functional potential and is independent with HEP therefore is discharged from Physical Therapy with instruction to continue HEP. Dr. J. Michael Calhoun began treating the claimant on September 15, 2016: The patient is a 43 year old male who presents with neck pain. The pain began in October of last year. Approximately 3 weeks later, he developed vertigo as well as numbness and tingling in his right arm...he was treated with physical therapy with no real improvement. He reports numbness and tingling down his arm into the 3 middle fingers of the right hand. It comes and goes. He underwent an MRI which showed a right-sided disc herniation at C6-7. At one point, he was scheduled for surgery on his neck under the guidance of Dr. Mason, but he canceled the procedure...the patient does wish to proceed with a C6-7 anterior cervical discectomy and fusion at this time.

10 ARMSTRONG - G Dr. Calhoun performed surgery on November 14, 2016: 1. C6-C7 anterior diskectomy and bilateral foraminotomy. 2. C6-C7 arthrodesis with PEEK cage and local autograft. 3. C6-C7 anterior plating. 4. Intraoperative fluoroscopy for localization and placement of PEEK cages and placement of plate. The pre- and post-operative diagnosis was 1. C6-C7 herniated nucleus pulposus. 2. C6-C7 stenosis. A pre-hearing order was filed on December 12, The claimant contended, On 10/1/2015, claimant was involved in a motor vehicle accident at work. The respondents accepted the claim, but did not provide medical treatment or indemnity benefits. Therefore, claimant was forced to treat on his own. Claimant sustained primarily neck and head injuries. Dr. Mason and Dr. Calhoun recommended a cervical fusion, which is currently set for 11/14/2016. Claimant contends that he sustained compensable injuries in the October 1, 2015 motor vehicle accident and that he is entitled to medical, TTD, and his attorney is entitled to attorney fees. All other issues are reserved. The parties stipulated that some medical benefits have been paid by the respondents. The respondents

11 ARMSTRONG - G contended, Claimant has been provided all appropriate benefits to which he is entitled. Specifically, Respondents have paid for the Claimant s medical expenses for the accident and the additional benefits sought by the Claimant are not causally related to the work-related motor vehicle accident. An administrative law judge scheduled a hearing on the issues of Additional medical treatment (cervical fusion surgery), temporary total disability benefits, and controverted attorney s fees. The parties deposed Dr. Calhoun on February 1, The respondents attorney questioned Dr. Calhoun: Q. What was your assessment or recommendation for Mr. Armstrong after your evaluation on September the 15 th of 2016? A. We talked about doing a C6-7 anterior diskectomy and fusion for his disk herniation at C Q. Was there any way to determine what caused the herniation at the C6-7 level? A. You mean from the MRI? Q. Yes. A. No, ma am... Q. Looking further at your notes, it appears that you performed surgery on November the 14 th of Is that correct?

12 ARMSTRONG - G A. That s correct... Q. When you performed the surgery, were you able to identify what had caused the herniated disk or the ruptured disk? A. No, ma am... Q. In your opinion is there any way to determine whether or not what surgery you performed, the condition that you treated him for would be related to any kind of workrelated injury? A. Oh, I mean, I don t really have an opinion about causation, if that s what you re asking me... Q. So, in Mr. Armstrong s case, you can t state within a reasonable degree of medical certainty that an accident that he had in an automobile on October the 1 st of 2015, caused the herniated disk that you treated in September and November of 16, correct? A. I just can t state what the cause was, that s right. A hearing was held on February 15, The claimant testified that he had experienced intermittent improvement in his symptoms but was not yet ready to return to work. An administrative law judge filed an opinion on April 12, The administrative law judge found, among other things, that the claimant sustained an injury to his cervical spine. The administrative law judge awarded medical treatment and temporary total

13 ARMSTRONG - G disability benefits. The respondents appeal to the Full Commission. II. ADJUDICATION Ark. Code Ann (4)(Repl. 2012) provides, in pertinent part: (A) Compensable injury means: (I) An accidental injury causing internal or external physical harm to the body... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is accidental only if it is caused by a specific incident and is identifiable by time and place of occurrence[.] A compensable injury must be established by medical evidence supported by objective findings. Ark. Code Ann (4)(D)(Repl. 2012). Objective findings are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann (16)(A)(i)(Repl. 2012). The employee has the burden of proving by a preponderance of the evidence that he sustained a compensable injury. Ark. Code Ann (4)(E)(Repl. 2012). Preponderance of the evidence means the evidence having greater weight or convincing force. Metropolitan Nat l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).

14 ARMSTRONG - G The claimant in the present matter contends that he sustained compensable injuries in the October 1, 2015 motor vehicle accident. The claimant contends that he sustained primarily neck and head injuries. The Full Commission finds that the claimant did not prove by a preponderance of the evidence that he sustained a compensable injury to his neck or cervical spine. The parties stipulated that the employment relationship existed on October 1, The claimant testified that he was involved in a work-related motor vehicle accident that date: Best I remember is I ran off the road and hit a sign. The claimant testified that his vehicle spun in circles and that an airbag deployed and hit him in the face. The claimant testified that he felt pain in his neck, shoulder, and back. As the Commission has discussed, the claimant treated at Mercy Clinic Family Medicine on October 1, It was noted at that time that the claimant Does not remember hitting his head. The claimant reported pain in his low back and right shoulder. The claimant also reported tenderness in his right shoulder, cervical region, and low back. Nevertheless, an x-ray

15 ARMSTRONG - G of the claimant s cervical spine on October 1, 2015 showed no acute abnormality. The claimant informed his regular medical providers at St. Vincent on October 2, 2015 that he was suffering from no neck pain. The claimant s history at Baptist Health on October 6, 2015 indicated, He mentioned he is feeling ok. No injury sustained in the accident [emphasis supplied]. Although an APRN at Baptist Health took the claimant off work on October 6, 2015, a Nurse Practitioner at Mercy Clinic stated on October 6, 2015, He is able to return to work without limitations. The Commission has the duty of weighing medical evidence and, if the evidence conflicts, its resolution is a question of fact for the Commission. Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). In the present matter, the Full Commission finds that the nurse s note at Mercy Clinic is corroborated by the record and is entitled to more evidentiary weight than the APRN s recommendation at Baptist Health. An MRI of the claimant s cervical spine on October 27, 2015 showed findings which included disc extrusion at C6-C7" and disc protrusion at C3-C4. It

16 ARMSTRONG - G is within the Commission s province to weigh all of the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The evidence in the present matter does not demonstrate that the abnormalities shown on the October 27, 2015 MRI of the claimant s cervical spine were causally related to the October 1, 2015 motor vehicle accident. Nor is there any probative evidence demonstrating that the claimant sustained a neck or cervical injury as the result of an airbag deploying on October 1, Finally, the Full Commission recognizes that Dr. Calhoun eventually performed a cervical diskectomy on November 14, However, Dr. Calhoun plainly testified at deposition that he could not causally connect the ruptured cervical disk which he treated to the October 1, 2015 motor vehicle accident. I just can t state what the cause was, Dr. Calhoun stated. The Commission has the authority to accept or reject a medical opinion and the authority to determine its probative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). The Full Commission in the present matter attaches significant evidentiary

17 ARMSTRONG - G weight to Dr. Calhoun s opinion. The evidence does not demonstrate that the ruptured or extruded cervical disks treated by Dr. Calhoun on November 14, 2016 were caused by the October 1, 2015 motor vehicle accident. The Full Commission finds in the present matter that the claimant did not prove by a preponderance of the evidence that he sustained a compensable injury. The claimant did not prove that he sustained an accidental injury causing internal or external physical harm to his neck or cervical spine. The claimant did not prove that he sustained an injury to his neck or cervical spine which arose out of and in the course of employment, required medical services, or resulted in disability. The claimant did not prove that he sustained an injury to his neck or cervical spine caused by a specific incident identifiable by time and place of occurrence on October 1, Finally, the claimant did not establish an injury to his neck or cervical spine by medical evidence supported by objective findings. The evidence does not demonstrate that the cervical abnormalities shown on the October 27, 2015 cervical MRI were causally related to the October 1, 2015 motor vehicle accident.

18 ARMSTRONG - G Therefore, after reviewing the entire record de novo, the Full Commission reverses the administrative law judge s finding that the claimant sustained an injury to his cervical spine arising out of and in the course of employment on October 1, We find that the claimant did not prove by a preponderance of the evidence that he sustained a compensable injury to his neck or cervical spine. The claimant did not prove he was entitled to additional benefits other than those already paid by the respondents. This claim is otherwise denied and dismissed. IT IS SO ORDERED. SCOTTY DALE DOUTHIT, Chairman CHRISTOPHER L. PALMER, Commissioner Commissioner Hood dissents. DISSENTING OPINION After my de novo review of the record in this claim, I dissent from the majority opinion, finding that the claimant did not prove he sustained a compensable injury to his neck or cervical spine.

19 ARMSTRONG - G Factual and Medical Background The claimant is 44 years old and worked for the respondent-employer as a right-of-way foreman. On October 1, 2015, the claimant was in an automobile accident in a company truck. According to the claimant, he ran off the road and hit a sign. During the accident, the air bag deployed hitting him in the face. The claimant was initially treated at Mercy Clinic Family Medicine. The claimant underwent a CT scan of his abdomen and pelvis and x-rays of his cervical and lumbar spines. The impression from the cervical spine x-ray revealed no acute abnormality. The lumbar spine x-ray showed anteriorly end plate spurring at L3 and L4 with no acute abnormality seen. The claimant returned to Mercy Clinic on October 6, A letter authored by Tanya Robberson, NP, indicated, [a]fter examination of Mr. Armstrong there are no findings that should prevent him from doing his job. He is able to return to work without limitations. He has been instructed to follow up with his PCP to have him evaluated for any underlying medical conditions.... X-rays of the claimant s cervical spine taken

20 ARMSTRONG - G at St. Vincent Health System on October 21, 2015 revealed the following: Evaluation demonstrates good alignment of the vertebral bodies and posterior elements in the lateral projection. There is mild and early degenerative disc narrowing at the level of C6-C7 with associated mild uncovertebral spurring. Note is made that there is apophyseal degenerative change which is most pronounced at C4-C5 on the right. IMPRESSION: Early degenerative disc and joint disease. The claimant underwent an MRI of the cervical spine on October 27, The results of the MRI were as follows: MR findings - Images are degraded by mild patient motion. Vertebral body heights and alignment are well maintained. Marrow signal is unremarkable. There is no atlantoaxial subluxation. The cervical cord appears unremarkable. There is no Chiari malformation. C2-C3 is unremarkable. At C3-C4, there is a very small right paracentral disc protrusion with no significant central canal or foraminal stenosis. C4-C5 and C5-6 are unremarkable. At C6-C7, there is a right paracentral, posterolateral and foraminal disc

21 ARMSTRONG - G extrusion, which causes severe right foraminal stenosis and impingement upon the right C7 nerve root. This contacts the ventral cord with mild cord compression. There is no left foraminal stenosis. C7-T1 and the visualized upper thoracic intervertebral discs are unremarkable. Impression - 1. Right paracentral, posterolateral and foraminal disc extrusion at C6-C7 causing severe right foraminal stenosis and right C7 nerve root compression. There is mild ventral cord compression without underlying signal change in the cord. 2. Very small right paracentral disc protrusion at C3-C4 with no significant central canal stenosis. In December 2015, Dr. Zachary Mason recommended that the claimant undergo physical therapy and prescribed an anti-inflammatory. After undergoing physical therapy, the claimant reported that his symptoms were manageable and cancelled his scheduled surgery. The claimant sought treatment from Dr. Michael Calhoun on September 15, 2016 for complaints of numbness and tingling down his arm into the three middle fingers of the right hand. The claimant made the decision to move forward with a C6-7 anterior cervical discectomy

22 ARMSTRONG - G and fusion, which Dr. Calhoun performed on November 14, Opinion For the claimant to establish a compensable injury as a result of a specific incident, the following requirements of Ark. Code Ann (4)(A)(i)(Repl. 2002), must be established: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann (4)(D), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). A pre-existing disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is

23 ARMSTRONG - G sought. See, Nashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). The employer takes the employee as he finds him. Murphree, supra. In such cases, the test is not whether the injury causes the condition, but rather the test is whether the injury aggravates, accelerates, or combines with the condition. However, although a disabling symptom of a pre-existing condition may be compensable if it is brought on by an accident arising out of and in the course of employment, the employee s entitlement to compensation ends when his condition is restored to the condition that existed before the injury unless the injury contributes to the condition by accelerating or combining with the preexisting condition. See, Arkansas Power & Light Co. v. Scroggins,230 Ark. 936, 328 S.W.2d 97 (1959). The claimant established that he sustained a compensable cervical spine injury. It is undisputed that the claimant was involved in a work-related automobile accident. In addition, there are objective findings of an injury in the form of an extrusion

24 ARMSTRONG - G revealed by an MRI. However, the majority found that the claimant failed to prove that the work accident caused the injury to his neck. I disagree. An MRI taken on October 27, 2015, only twenty-six (26) days after the accident, showed a [r]ight paracentral, posterolateral and foraminal disc extrusion at C6-C7". This injury prevented the claimant from performing his job duties and required surgical intervention. Prior to the work-related accident, the claimant was able to perform his job duties without restrictions or limitations. Also, the claimant had not sought treatment for cervical spine complaints prior to his work-related accident. The evidence preponderates that the claimant sustained an injury while performing employment services. Even if we were to determine that the claimant s injury was not a new injury, we must conclude that the accident aggravated a pre-existing condition. As stated previously, the claimant was not restricted or limited in performing his job duties until after he was involved in this work-related accident. Therefore, I find that the claimant has met his burden of proving by a preponderance of the evidence that he sustained a

25 ARMSTRONG - G compensable injury to his cervical spine. For the foregoing reasons, I must dissent from the majority opinion. PHILIP A. HOOD, Commissioner